Arshad Ali Versus State

Order

Amjad Ali Bohio, J .--- Through the instant Criminal Miscellaneous Application filed under Section 561-A, Cr.P.C., the applicant, Arshad Ali son of Ghulam Sarwar, has assailed the order dated 29.03.2025, passed by the learned Civil Judge and Judicial Magistrate-I, Khairpur, on the Final Report submitted under Section 173, Cr.P.C. in Crime No.35 of 2025 registered at Police Station "B" Section, District Khairpur. Through the impugned order, the learned Judicial Magistrate, while disagreeing with the findings of the Investigating Officer who had recommended that the name of the applicant be placed in Column No.2, took cognizance of the offences under Sections 302, 337-H(2), 148, 149, and 114, P.P.C against the applicant and directed that the case be tried accordingly.

2.As per the prosecution case, the complainant, Mubeen-ur-Rehman son of Abdul Rehman, by caste Pathan, resident of Mill Colony, Khairpur, lodged an FIR on 20.01.2025 at Police Station "B" Section, Khairpur. It was alleged therein that, at the instigation of accused Ali Gul Khokhar, the applicant, Arshad Ali, fired a pistol shot directly at Ameen-ur-Rehman with the intention to commit his murder. It was further alleged that the co-accused, namely Sohail Ahmed, Riaz Hussain, and three unidentified persons, also caused firearm injuries to Ameen-ur-Rehman who succumbed to injuries. Upon hearing gunshots and cries, people gathered at the scene, whereupon the accused persons, in order to spread terror and create panic, resorted to aerial firing before fleeing the scene on their motorcycles. During the investigation, SDPO Faraz Ali Maitlo was appointed as Inquiry Officer by the SSP, Khairpur, on the application of Ghulam Mustafa Khokhar. During the course of inquiry, the Inquiry Officer recorded his own statement, as well as, those of the defence witnesses, namely Muhammad Maroof Memon, Rasool Bux alias Aamir Soomro, Shams Din Kalhoro, Sadam Hussain Memon, Waqar Ahmed Kumbar, Satramdas Hindu (Mukhi), Bagh Ali Unnar, Javed Ahmed Katpar, Inspector Mushtaq Ahmed Jatoi, and Head Constable Mazhar Ali Mahessar. The Inquiry Officer also collected CCTV footage showing the presence of the applicant, Arshad Ali, at Madeji City on the date of the Incident, i.e., 16.01.2025, along with the CDR of mobile number 0309-0275365 belonging to the applicant, Arshad Hussain Khokhar, and opined that the applicant was present at the shop of Muhammad Maroof Memon at the relevant time. Upon completion of the investigation, the Investigating Officer submitted the final report under Section 173, Cr.P.C. before the learned 1st Judicial Magistrate, Khairpur, showing accused Ali Gul, Sohail Ahmed, and Riaz Hussain as chargeable, while releasing the applicant, Arshad Ali Khokhar, under Section 169, Cr.P.C., and placing his name in Column No.II. However, the learned Magistrate did not agree with the opinion of the Investigating Officer and passed the impugned order.

3.Learned counsel for the applicant contended that the impugned order dated 29.03.2025, passed by the learned Civil Judge and Judicial Magistrate-1, Khairpur, is patently illegal, arbitrary, and devoid of judicial reasoning or proper appreciation of the material available on record. He argued that the learned Magistrate exceeded his jurisdiction by taking cognizance against the applicant and issuing process, despite the fact that an inquiry had already been conducted by SDPO Faraz Ali Maitlo under the directions of the SSP, Khairpur. During the said inquiry, the Inquiry Officer collected the Call Data Records (CDRs) and CCTV footage pertaining to the date of incident, i.e., 16.01.2025, which established that the applicant was present at Madeji Chowk, Taluka Garhi Yaseen, and not at the place of occurrence, namely Mill Colony, Khairpur. Learned counsel submitted that, based on this material, the Inquiry Officer recommended the release of the applicant in view of his plea of alibi, which was duly supported by the evidence collected during the inquiry. However, despite such findings, the learned Magistrate disagreed with the police report without assigning cogent reasons. It was further contended that the FIR was lodged after an inordinate and unexplained delay of four days; that all prosecution witnesses named in the FIR are closely related to the complainant, and that the alleged motive that the applicant was annoyed upon learning that the complainant's brother, Ameen-ur-Rehman, was appearing as a witness in a previous motorcycle-snatching case, is wholly concocted and lacks credibility. It was, therefore, argued that the applicant has been falsely implicated in the present case out of malice. In support of his contentions, learned counsel placed reliance upon the case of Director-General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others (PLD 2013 SC 401).

4.Conversely, the learned Deputy Prosecutor General, assisted by learned counsel for respondent No.4/complainant, opposed the Criminal Miscellaneous Application and strongly supported the impugned order. They submitted that the First Information Report, the ocular account of the incident, and other material available on record clearly establish that the applicant, in collusion with the co-accused, actively participated in firing upon the deceased with the deliberate and premeditated intention to cause his death. Hence, the offences squarely fall within the ambit of Sections 302, 148, 149, 114, and 337-H(2) of the Pakistan Penal Code. It was further argued that the learned Magistrate, after carefully evaluating the investigation report, statements of witnesses recorded under Section 161, Cr.P.C., and the submissions of both sides, rightly disagreed with the Investigating Officer's recommendation to absolve the applicant and lawfully took cognizance of the case. They contended that the plea of alibi , which is based on the CDR and CCTV footage collected by the Inquiry Officer, SDPO Faraz Ali Maitlo, carries no evidentiary value as no forensic report of the CCTV footage was obtained, nor, were the statements of the Inquiry Officer or the individuals who captured or produced such material recorded by the Investigating Officer. Therefore, the plea of alibi does not ipso facto entitle the applicant to exoneration at this stage. It was emphasized that the impugned order represents a well-reasoned and judicious exercise of discretion by the learned Magistrate, rendered after due consideration of the seriousness of the allegations and the need to safeguard public interest. It was thus argued that the order suffers from no illegality, irregularity, or impropriety. Learned counsel accordingly prayed that the instant Criminal Miscellaneous Application be dismissed in its entirety as being devoid of merit.

5.I have heard the learned counsel for the respective parties and examined the record with their able assistance.

6.Before delving into the merits of the case, it is appropriate to address the pivotal question concerning the maintainability of the instant petition filed under Section 561-A of the Code of Criminal Procedure, 1898 (hereinafter referred to as "the Code"). For ease of reference, the provision of Section 561-A of the Code is reproduced below:

7.A plain reading of the foregoing provision of the Code reveals that the powers conferred upon the High Court under Section 561-A are of a wide and inherent nature, enabling it to make such orders as may be necessary to prevent the abuse of the process of law or to secure the ends of justice. These powers are intended to ensure that any order passed under the provisions of the Code does not result in injustice or procedural impropriety.

8.From a perusal of the record, it appears that the applicant, along with his co-accused, allegedly fired straight shots from their pistols at Ameen-ur-Rehman, hitting him on various parts of his body. According to the FIR, a total of six accused persons, including the present applicant, collectively fired upon the deceased. During the course of investigation, an inquiry was conducted by the SDPO on the directions of the SSP, Khairpur, who collected CCTV footage/videos purportedly showing the applicant present at Madeji rather than at Mill Colony, the place of the incident. The Investigating Officer, while submitting the report under Section 173, Cr.P.C., placed the applicant's name in Column No.II. However, the report neither referred to nor, relied upon the recommendations of the Inquiry Officer/SDPO, who had suggested the applicant's release on the basis of the said CCTV footage/videos and Call Data Record (CDR). Furthermore, the Inquiry Officer failed to associate or examine the person who had captured or recorded the CCTV footage/videos. Similarly, the Call Data Record collected by the Investigating Officer does not bear any endorsement, certification, or authentication from the relevant cellular or telecom company that purportedly issued it. The Investigating Officer also failed to record the statement of the witness who provided the said Call Data Record. Consequently, such material carries no evidentiary value unless it bears the official seal or is accompanied by a letter of authentication from the issuing company, as held in the case of Khair Muhammad and another v. The State (2025 SCMR 1599), wherein it was observed as under:

9.It is a settled principle of law that the plea of alibi cannot be treated as a decisive factor in controlling the Court's discretion regarding the grant or refusal of bail. There is no denial of the fact that all prosecution witnesses have categorically supported the allegations leveled against the applicant; therefore, the plea of alibi alone is insufficient to outweigh the prosecution material available on record. Needless to mention, the statements of independent persons, even if recorded during the course of investigation, cannot be allowed to prevail over the consistent account furnished by the prosecution witnesses if such statements appear to be in the nature of a defence version. The rationale is evidept, if such a practice were permitted, influential accused persons could easily procure statements favourable to them, thereby frustrating the course of justice. The facts of the case cited and relied upon by learned counsel for the applicant are clearly distinguishable from those of the present matter.

10.It is also a well-established principle of law that a police report is not binding on the Court, being merely an ipse dixit, a bare assertion without judicial proof or determination. Despite the placement of the applicant's name in Column No.ll, the learned Magistrate was not bound to accept the report and rightly directed the applicant to join the trial, in the present case, six accused persons, including the applicant, have been implicated and assigned specific roles in the commission of the offence. The offence is alleged to have been committed while the complainant party was preparing to offer prayers. Consequently, the possibility of a common object, implying a prearranged and shared intention to commit the murder of the deceased, cannot be ruled out. In determining the existence of a common object among members of an unlawful assembly, the conduct and participation of each member are relevant considerations that require careful scrutiny by the trial Court. Here, all the accused, including the applicant, were allegedly armed with firearms, the details of which are mentioned in the FIR. As regards the plea of alibi, there is no forensic verification of the CCTV footage or recordings obtained during investigation. Moreover, the Investigating Officer did not associate the Inquiry Officer or the individuals who captured or produced the CCTV footage and CDR as witnesses. The admissibility, relevance, and evidentiary value of the alleged CCTV recordings and CDR are matters to be determined during trial, as held in Aljaz Ahmed Chowdry v. The State through Prosecutor General Punjab and another (2025 SCMR 1596). Even otherwise, the plea of alibi cannot be conclusively considered at this preliminary stage, and the learned trial Court has rightly refrained from doing so.

11.While it is true that the applicant has asserted his innocence and that an inquiry was conducted, it is equally evident that, at this stage, it is difficult to conclusively determine the applicant's innocence, particularly in view of the Inquiry Officer's report, who has not been associated as a witness by the Investigating Officer. Courts are required to apply their judicial mind to the material collected during investigation to prevent any miscarriage of justice, while simultaneously recognizing that each case must be evaluated on its own peculiar facts and circumstances. The jurisdiction of the Magistrate is not circumscribed by the conclusions drawn in the police report. A Magistrate is neither bound by the opinion of the Investigating Officer nor, obliged to accept his recommendations without independent assessment. The Magistrate is vested with wide-ranging powers to form his own opinion based on the material placed before him, thereby ensuring that the administration of justice is not rendered subservient to the findings of the investigating agency. The Hon'ble Supreme Court of Pakistan has enunciated this principle referred in the case of Javed Khan and 5 others v. The State and others (2019 PCr.LJ 1756) [Peshawar (Bannu Bench)], wherein it was observed as under:

7. Undisputedly, the magistrate is competent to pass any order on the report submitted by the investigating officer and take cognizance of the offence or even order for further investigation. If any case law is needed reference may be made to the case reported as Imran v. Liaqat Ali (2010 YLR 3288)."

12.In light of the aforementioned legal principles and judicial precedents, this Court finds that the learned Magistrate was fully justified in taking cognizance against the applicant. The plea of alibi can only be determined after the parties have adduced their respective evidence at trial, which falls exclusively within the jurisdiction of the competent criminal Court. Reliance in this regard is placed upon the case of Habib Barkat v. Naeem Khilji, I.O./I.P. Police Station Hub and 2 others (2025 PCr.LJ 453).

13.Consequently, this Criminal Miscellaneous Application is without merit and is hereby dismissed.

14.This Criminal Miscellaneous Application had earlier been dismissed after hearing the learned counsel for the parties in open Court, vide short order dated 03.11.2025. The foregoing constitutes the detailed reasons in support of that order.

JK/A-42/Sindh Application dismissed.